Rational Responses to the Innocence Crisis Go Further Than Death Penalty Repeal
In an exciting moment in the anti-death penalty movement, both houses of the Illinois legislature voted to repeal capital punishment. Now, the decision of whether to abolish the state’s death penalty resides in Governor Pat Quinn’s hands.
The Illinois Senate’s decision on the repeal bill came on the eight-year anniversary of former Governor George Ryan’s announcement that he would commute the sentence of 163 death row inmates and pardon another four. The Governor’s decision was motivated in large part by the concern that the State had wrongly convicted over half of the death row inmates whose cases had concluded with either execution or exoneration between 1978 and 2000. See Lawrence Marshall, The Innocence Revolution and the Death Penalty, 1 Ohio St. J. Crim. L. 573, 578 (2004). Those numbers, the Governor thought, were shocking and unacceptable.
Innocence has proven to be a driving force in the current effort to push legislatures to repeal the death penalty. After all, the question we must ask ourselves is: can we tolerate the risk – any risk – that we will use the power of the State to execute someone who is innocent of the crime for which they have been convicted? The question raises a powerful and unshakeable inference: a human institution – any human institution – is imperfect. Mistakes are a reality. For many, that reality is enough to win the argument that the death penalty is not a policy option to which we should dedicate precious resources to maintain.
But, as critical a tool as innocence has been to the anti-death penalty movement, I wonder why the alarming error rate has not yet inspired many other changes in the criminal justice system. After all, many innocent individuals who were sitting on death row are now sitting in prison, serving a life sentence without the possibility of parole. Innocence undermines the conviction, not just the punishment.
The elimination of the death penalty responds to the worry that an irreversible act, an execution, permanently prevents an inmate from bringing to light his innocence. But, that cannot be our only worry. How many people in prisons across the country will never be able to muster the immense resources it takes to be exonerated? How many inmates have died in prison without vindicating themselves and enjoying the freedom and opportunities they rightfully deserved? How many of those stories will remain unknown?
Surely, Illinois is attempting to take a step in the right direction. But, legislatures, judges, and lawyers must work greater changes in the criminal justice system to curtail the convictions of innocents. A serious look at the reliability of eyewitness identification and quasi-scientific evidence (like “bite-mark” analysis), legal and disciplinary actions against prosecutors who commit misconduct or fail to disclose exculpatory evidence, a commitment to confrontation and the presumption of innocence, and responsible consideration of evidentiary rules governing the admissibility of the other bad acts an individual has committed – these are just a handful of things that could make a meaningful impact upon the innocence crisis.
This is not to say that criminal justice reform advocates have not been pushing for these kinds of changes for years. But, it seems that innocence is most effectively and most often deployed in the battle against the death penalty. There is no doubt that the fight against the death penalty currently relies upon innocence arguments to gain traction. However, does innocence rely upon the death penalty as well?
Deterrence and the Death Penalty
Outgoing Governor of Pennsylvania, Edward Rendell, wrote a letter to the state General Assembly in his final days as governor, questioning the effectiveness of the death penalty. He wrote,
“As a former District Attorney and as a death penalty supporter, I believe the death penalty can be a deterrent – but only when it is carried out relatively expeditiously.”
Dissatisfied by the delays in actual executions caused by the appeals process, the Governor called on legislators to decide if the process could be sped up or otherwise, called them to consider repeal.
There is no doubt that Rendell is a death penalty supporter: he signed six execution warrants on the same day that he issued this letter – bringing the total number of execution warrants to 119 during his term as governor.
Rendell subscribes to Beccaria’s well-accepted theory that deterrence will only be achieved through punishment that swiftly follow on the heels of the crime. His frustration with capital punishment is rooted in his belief that it can deter future crimes – if only the process didn’t take so long.
Last week, the Illinois legislature voted to repeal the death penalty. Some opponents of the bill spoke about the need for capital punishment to protect prison guards and deter murderers serving life from killing inside the prison walls. Others spoke of general deterrence, claiming that without the death penalty, there would be a higher murder rate in the state of Illinois. That will remain to be seen if the Governor signs the bill.
Regardless of whether the death penalty does deter would-be murderers (and we can probably all agree that pursuing a conclusive answer to this question seems much like chasing the white rabbit), the question we should ask is: what weight should we give deterrence in deciding whether or not we want the death penalty?
It seems to me that deterrence is a secondary reason to have the death penalty which is only compelling in conjunction with a primary reason. If we believe that the death penalty is a just, retributive punishment for the taking of a life, then deterrence would provide a further reason for carrying that punishment out.
But deterrence alone should not be a satisfactory reason for our society to ask for the death penalty. We may deter a child from disobeying us by striking her across the cheek, but just because our technique is effective, it does not make it right. You may disagree, thinking “The death penalty is absolutely necessary if it means we will stop future homicides.” But that is to assume it is the only way to prevent future homicides, as though there are no alternative measures we might take. I believe that way of thinking undersells our potential to create positive change in our communities. In Louisiana, for instance, perhaps the money that is spent potentially preventing homicides by putting people on death row could be funneled into education, healthcare and infrastructure to try and turn around Louisiana’s ranking as the 2nd worse state in the U.S. to raise a child. It is not a coincidence that the vast majority of death row inmates in Louisiana grew up in poverty and dropped out of school. While the link between the death penalty and the homicide rate is inconclusive, there is no question that education and poverty plays a key role in the prevalence of violent crime.
Therefore, I submit that we should not simply ask “is the death penalty deterring crime?” as Governor Rendell urged his legislature to do; we should ask “is the death penalty the most effective way to deter crime?”
Montejo v. Louisiana (II) Cert Petition
The cert petition asks the U.S. Supreme Court to take a second look at this important case involving a defendant’s right to counsel under the Sixth Amendment. You can access the pleadings here (Cert Petition _ Montejo v. Louisiana II), here (State’s Brief in Opposition), and here (Reply to Brief in Opposition).
To see thoughts on why this is a crucial issue at this time, see Prof. Ron Sullivan’s post here.
Williams v. Louisiana – Cert Conference on May 13th
The previous post contains a link to our cert petition in Williams v. Louisiana, which asks the U.S. Supreme Court to weigh in on the issue of proportionality review of capital sentences in Louisiana. Since the time of that post, the State has filed its Brief in Opposition, and we filed a Reply. The Court is set to meet on the petition on May 13th.
Both the Louisiana Supreme Court and the State have taken the position that race did not play a role in the death sentence in this case because there is no evidence that Mr. Williams intended to kill the victim because of her race. But, there is disquieting statistical evidence that the race-of-the-defendant and race-of-the-victim play a significant role in determining which defendants receive death sentences out of East Baton Rouge Parish. The last thirteen people sent to death row from the parish are African-American, and there is evidence a black man convicted of killing a white woman has a 1 in 2 chance of being sentenced to death, while a white man has never been sentenced to death for killing a black person in the last thirty years (or perhaps ever).
The State’s Brief in Opposition can be found here: State’s Brief on Cert
Our Reply to the State’s Brief in Opposition can be found here: Cert Reply to BIO FINAL
Cert Petition on Proportionality Review in Louisiana
On March 10, our office filed a cert petition in the case Williams v. Louisiana. The petition asks the Supreme Court to review his core claim that the current administration of the death penalty in Louisiana leads to unconstitutional arbitrariness. The question presented is: “Whether the Petitioner’s death sentence violates the Fifth, Sixth, Eighth, or Fourteenth Amendment where: (1) the Louisiana Supreme Court failed to provide meaningful appellate proportionality review; and (2) the jury did not determine beyond a reasonable doubt that death should be imposed.”
The cert petition brings attention to the Louisiana Supreme Court’s woefully deficient proportionality review.
You can view the petition in its entirety right here: Cert Petition FINAL
Autobiography of an Execution
Professor David Dow is the director of the Texas Innocence Network at the University of Houston Law Center and has just released a new book: “Autobiography of an Execution.”
Dow deals with a number of issues in the book – how he reconciles his passion to represent death row inmates with the reality of what his clients have done to victims and their families; how he struggles to balance his emotionally devastating and time-consuming work with his desire to be a good husband and father; and how he battles against a system of courts that overwhelmingly defeats his efforts to save his clients’ lives.
Below is an excerpt from the first chapter of Dow’s book. It’s a good example of the way Dow integrates his personal reflections into an account of his professional life. Though it is unsurprising that he cannot separate the two.
My first client was executed in 1989. Derrick Raymond was an average bad guy who did one very bad thing. He dropped out of high school in tenth grade. Two years later he enlisted in the army to learn a skill. He wound up in Vietnam. He did not talk much to me about the war. I learned about his service record ten years after he was executed, when one of his army buddies tried to track him down but got in touch with me instead. Derrick returned to Houston with a purple heart and a heroin habit that cost him five hundred dollars a week, but still without any job skills. He pumped gas until he got fired for missing too many days. Drug addiction has many consequences. He started robbing convenience stores and fast-food restaurants. After one stickup, which netted him $73 and change, he was running down the street when the security guard gave chase, shooting. One shot hit Derrick in the leg. He fell to the pavement, turned around, and fired five shots at the security guard. The guard took cover, but one shot hit a seven-year-old boy who had just finished having lunch with his mother. There might be nothing sadder than dead children. On top of that, Derrick was black and the boy was white. That’s a bad combination. The jury took less than two hours to sentence him to death.
Derrick’s lawyer fell asleep during the trial—not just once, but repeatedly. The prosecutor was appalled, but the trial judge just sat there. When a new lawyer requested a new trial, the court of appeals said no, because the judges believed Derrick would have been convicted even if his lawyer had been awake. Another court-appointed lawyer represented him for his habeas corpus appeals in state court. That lawyer missed the filing deadline. If you miss a deadline, the court will not -consider your arguments. That’s when I got appointed to represent Derrick in federal court. But the federal courts have a rule: They refuse to consider any issues that the state courts have not addressed first. The state court had said that Derrick’s lawyer was too late and had therefore dismissed his arguments. So the federal court would not hear our appeal either.
My job as a lawyer, therefore, consisted mostly of planning the disposition of Derrick’s estate. Of course, he didn’t have an estate, meaning that my job was to arrange for the disposal of his body. (He did not want to be buried in a pauper’s grave right outside the prison gates in Huntsville, Texas.) Making funeral arrangements didn’t take very long either, so my job was really just to be his counselor, to listen to him, to send him books or magazines, to be sure he would not have to face death alone. My goal is to save my clients, but that objective is beyond my control. All I can control is whether I abandon them.
I would visit Derrick once a week and talk to him by phone another day. He had a son, Dwayne, who was twelve when his dad arrived on death row and nineteen when Derrick was executed. I sat next to them as they struggled to connect. The Internet is ruining society because human relationships are inherently tactile. It’s hard to become close to a man you can’t touch, even (maybe especially) if he’s your dad. I told them I was hopeful that the Board of Pardons and Paroles and the governor would commute Derrick’s sentence, and I was. I am always hopeful. Nothing ever works out, but I always think that it’s going to. How else could you keep doing this work? I watched his execution because he asked me to.
At 12:37 a.m. on Thursday, March 9, 1989, Derrick was put to death in front of me, Dwayne, and two local reporters. Afterward, I hugged Dwayne, got in my truck, and drove with my dog and a case of Jack Daniel’s to my cabin on Galveston Island. I sat on the deck watching the Gulf of Mexico and drinking. The moon was bright. The mullet were jumping in schools and I could see trout in wave curls feeding. I smelled the rain. I left the front door open so the dog could go outside when she needed to and dumped a week’s worth of food in her bowl. At dawn the sky blackened and the storm rolled in. I made sure my lounge chair was under the eave then closed my eyes and slept. When I’d wake up to use the toilet, I’d drink a shot of whiskey and chase it with a pint of water. I intended not to get dehydrated. Other than the birds and the surf, the only sound I heard was the thump of newspapers landing on driveways every morning. On Monday, I opened four papers, to figure out what day it was. I ran for an hour on the beach with the dog and swam for thirty minutes in the surf while the dog watched. Walking back to the cabin for a shower I said to her, Sorry for being a terrible master. She picked up a piece of driftwood and whipped her head back and forth.
We had lunch sitting on the deck at Cafe Max-a-Burger. I ordered four hamburgers, a basket of onion rings, and a lemonade. The dog ate her two burgers so fast that I gave her one of mine. When I paid the bill the cashier said, That’s one lucky dog.
I said, Thanks for saying so, but you have it backwards. That dog is by far my best quality.
Publisher: Grand Central Publishing; Date: February 2010
You can hear an interview with David Dow about the book here (see Feb 9):
Sentencing Law & Policy Blog Features Rob’s Piece on “The Racial Geography of the Federal Death Penalty”
The piece, co-authored by blog contributor Rob Smith and attorney G. Ben Cohen, is available on SSRN. Professor Berman at Sentencing Law & Policy recently spotlighted the piece here.
The abstract states:
Scholars have devoted substantial attention to both the over-representation of African-Americans on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims. This attention has not provided an adequate explanation for (much less resolution of) these disquieting racial disparities. Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences. By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences occur disproportionately where the expansion of the venire from the county to the district level has a dramatic demographic impact on the racial make-up of the jury. This inquiry demonstrates that the conversation concerning who should make up the jury of twelve neighbors and peers – a discussion begun well before the founding of our Constitution — continues to have relevance today.
After documenting both the historical and racial relationships between place and the ability to seat an impartial jury, and the unique impact demographic shifts in the jury pool have on death penalty decision making, we propose three possible solutions: 1) A simple, democracy-enhancing fix: a return to the historical conception of the county as the place of vicinage in federal capital trials; 2) A Batson type three-step process for rooting out the influence of race on the decision to prosecute federally; 3) Voluntary measures by the Attorney General to mask demographic and location identifiers when deciding whether to provide federal death-authorization. We explain why a return to county-level jury pools in federal capital cases (whether through statutory construction, legislative change, or through the authority of an fair-minded Attorney General) prospectively limits the impact of race on the operation of the federal death penalty, without establishing the intractability of the federal death penalty as a whole. Finally, we observe that any effort to study the federal death penalty cannot merely address those federal cases in which the Attorney General has considered whether to approve an effort to seek the death penalty, but must also include an assessment of the cases prosecuted in state court that could be prosecuted federally and the prosecutorial decision concerning when and whether to prosecute in federal court.
The piece poses a lot of interesting questions about race, federalism, jury selection, and the geographic arbitrariness of the death penalty. As always, we invite commentary and discussion here.
Louisiana Executes Gerald Bordelon
The State of Louisiana took Gerald Bordelon’s life yesterday. Mr. Bordelon volunteered for execution. After a jury convicted him of first-degree murder at the guilt phase of his capital murder trial, he asked his trial attorneys not to present any mitigating circumstances at the penalty phase – the phase where the jury had to decide whether the convicted murderer would be executed, or would serve a life-without-parole sentence. After the jury sentenced him to death by execution, Mr. Bordelon waived his right to challenge that sentence in front of the Louisiana Supreme Court. The Louisiana Supreme Court nonetheless issued an opinion in his case that ultimately dismissed the appeal. The Court indicated that it was legally obligated to decide whether Bordelon was competent to waive his appeals and also to determine if his sentence was proportionate. In October, the Court cleared the path for today’s execution, and ruled that Mr. Bordelon is competent to waive his rights to an appeal, and that the death sentence in this case is not disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
Generally, it isn’t uncommon for death-sentenced defendants to “volunteer” for execution by waiving their appeals. According to the NAACP Legal Defense Fund, roughly 12% of defendants waive appellate review. Yet, Bordelon was the first person to successfully volunteer in Louisiana since the death penalty was reinstated here in 1976. And, while every case in which someone “volunteers” presents complex legal, ethical, moral, and philosophical questions, Gerald Bordelon’s case is worth thinking about carefully.
From my perspective, Mr. Bordelon’s execution is unsettling because it was not the product of an adversarial process, and the American legal system requires that final adjudicated judgments be informed by the zealous advocacy of lawyers in adversarial positions. Instead, Mr. Bordelon’s death was the result of multiple, compounded perversions of our criminal justice system.
First, the jury that sentenced Mr. Bordelon to death did not hear any mitigating circumstances. According to the Louisiana Supreme Court, “[t]he penalty phase . . . began with a waiver by defendant of his right to present mitigating evidence . . . .” Without mitigating evidence, the jurors had incomplete information about the person the State implored them to condemn. Not everyone who commits a first-degree murder should be executed. Indeed, the United States Supreme Court has held that some individuals cannot be constitutionally executed. Mitigating evidence must be presented in order for the jury to make an accurate assessment of whether this particular defendant deserves the harshest penalty available. Was Bordelon mentally ill? Did he suffer abuse throughout his childhood? Would he be able to live peacefully in a controlled environment? Did he feel remorse for the crime? These and other critical questions were left unanswered at trial. The penalty phase did not pit two opposing parties against each other in the way we all learn how American trials are supposed to unfold. The jurors sat and watched, as the State’s lawyers were not challenged when they asked the jury to order Bordelon’s execution. Not surprisingly, the jury returned a death sentence.
Second, the Louisiana Supreme Court found that the defendant was competent to waive his appeals even though no party took the position that he may not be competent. To determine competence, the Louisiana Supreme Court remanded the case and asked a sanity commission to make a finding upon which the Court could later rely. The Court made the work of this sanity commission sound grave: “When a defendant asserts that he is eligible for execution because he has terminated all further legal proceedings, the consequences of an erroneous determination of his competency to make that decision are so severe that the record of the proceedings conducted on the sanity commission’s findings must show by clear and convincing evidence that he has the capacity to make a knowing, intelligent, and voluntary waiver of his right to appellate review of his capital conviction and sentence of death.” What the Court did not say is that these commissions do not typically produce conclusions in a non-adversarial setting. When neither party provided reasons to question the inmate’s competence, the work of the commission was basically done before it even really began. I don’t suggest here that Mr. Bordelon was not competent to waive his appeals (although the Supreme Court made the competency standard sound a whole lot more difficult to meet than it really is), but point out that the entire process by which this execution was approved does not comport with our system’s purported notion of justice.
Third, the Court’s comparative proportionality review is far from meaningful. In the Bordelon opinion, the Louisiana Supreme Court insisted that it had an independent duty to conduct its “Rule 28 Review” of the death sentence “to determine . . . whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” As we’ve established here, the Court has not conducted a serious proportionality review in roughly three decades. And, the way that Louisiana Supreme Court Rule 28 is written and the way that records are kept in Louisiana, the Court simply cannot make an effective comparative proportionality review without the full adversarial participation of both parties. In Bordelon, the Court yet again: only truly evaluated cases that resulted in death sentences (and not those that came back with life-or-less sentences); cherry-picked death sentences from other jurisdictions without looking at the life-or-less cases from those jurisdictions; and failed to look into the mitigating circumstances present or absent in those other capital cases. It is unclear whether the Court enforced the Rule 28 command that “[d]efense counsel shall file a [sentence review] memorandum on behalf of the defendant . . . .” Moreover, the Court never identified or reviewed any mitigating circumstances because none were presented at trial. How could the Court meaningfully compare “considering both the crime and the defendant” when it had utterly incomplete mitigating information about the defendant in this case? Perhaps an intellectually honest and rigorous proportionality review would have revealed that Mr. Bordelon’s sentence was proportionate. However, the breakdown of the adversarial process and the Court’s unwillingness to look beyond what was presented to it made a meaningful proportionality review impossible.
One could certainly argue that Mr. Bordelon was rightly allowed to waive his appeals. And, maybe that’s true. Even if the system functioned the way it was designed to in this case, Gerald Bordelon may still have been executed today (in accordance with his wishes). However, the system did not work in the manner intended, and that is what troubles me. The judges and lawyers involved ignored fundamental legal principles to facilitate the result that all interested parties apparently wanted in the end. When we sacrifice principle for expediency, we undermine the very institutions which stand upon those principles. Once again, the death penalty proves to be arbitrary and unprincipled above all else.
“The Numbers Speak”
Jeff Gamso at “Gamso – For the Defense” put up a thoughtful post that is responsive to the question I posed in my entry on the Gallup poll numbers. You can visit check out his insightful analysis here: http://gamso-forthedefense.blogspot.com/2009/11/numbers-speak.html.
Do People Actually Care If the State Executes Innocent Defendants?
In October, Gallup released figures regarding its most recent poll on the death penalty. The report is available on the Death Penalty Information Center website here.
The most cited figures from Gallup reflect two continuing trends: (1) “65% of Americans continue to support the use of the death penalty for persons convicted of murder (show[ing] little change over the last six years);” and (2) when posed with life imprisonment as an alternative to the death penalty for convicted murderers, “47% said they preferred the death penalty (48% favored life imprisonment).” While these numbers are obviously important to people who care about the death penalty, I took a particular interest in a somewhat surprising and perverse related Gallup finding.
According to the Poll, “59% of Americans agree[] that within the last five years, ‘a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with.’” As the report points out:
However, for many Americans, agreement with the assertion that innocent people have been put to death does not preclude simultaneous endorsement of the death penalty. A third of all Americans, 34%, believe an innocent person has been executed and at the same time support the death penalty. This is higher than the 23% who believe an innocent person has been executed and simultaneously oppose the death penalty.
In August, the Supreme Court of the United States granted an original writ for habeas corpus and ordered a District Court to hold an evidentiary hearing in Troy Davis’s innocence case. Justice Scalia, joined by Justice Thomas dissented from the order. In his dissent, Scalia suggested that the U.S. Constitution may not actually prohibit the execution of an innocent individual:
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.
Although his statement about the Court’s precedent is legally accurate, that Scalia might not find the execution of an innocent person constitutionally objectionable seemed to shock the consciousness of many members of the legal community (including Alan Dershowitz, Dahlia Lithwick, and other observers).
But, in this instance, the views of those offended in the legal profession may not accurately reflect the views of people in society at large. Although I thought Scalia’s comments would generate more public outrage on a wide scale, people seemed relatively unmoved. Could it really be that people who believe that the State executes innocent people support the death penalty nonetheless? How could one simultaneously hold both beliefs?
Whatever the explanation, the Gallup numbers present anti-death penalty advocates with a serious dilemma. Many anti-death penalty folks believed that a public understanding that the system fails to ensure that people who are executed were actually guilty of the crime for which they have been convicted would lead to a decline in support for capital punishment. The Gallup numbers undercut the force of this assumption. Indeed, the controversy surrounding Texas’s execution of Cameron Todd Willingham – though serious – has not yet generated a societal backlash against the death penalty. The numbers also partly rebut the Marshall Hypothesis. Former Supreme Court Justice Thurgood Marshall speculated that support for the death penalty would decline as people came to understand how the system breaks down at numerous points in the process. The Gallup poll suggests that he may have been too hopeful.
All things considered, the recent Gallup poll may leave one to wonder what can be done… As always, I look for suggestions…
A Criminal Enterprise 
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